Docket: A-194-15
Citation:
2016 FCA 30
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CORAM:
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PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
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BETWEEN:
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JAMES W.
ROBERTSON
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
In this appeal, the appellant seeks to set aside
the March 10, 2015 judgment of Justice Manson of the Federal Court, indexed as
2015 FC 303, in which the Federal Court dismissed the appellant’s application
for judicial review.
[2]
The Federal Court found at paragraph 32 of its
Reasons that the appellant’s judicial review application was aimed at
challenging the April 2, 2014 decision to update the appellant’s Correctional
Plan. This finding was based on submissions that the appellant made to the
Federal Court about the scope of his application in response to a motion to
strike the application.
[3]
Despite this, the appellant argued before us
that his judicial review application was directed toward challenging a Directive
issued in 2012 by the Commissioner of Correctional Services Canada [CSC], which
he asserted provides that individuals who have served their sentences and are
subject to a Long Term Supervision Order [LTSO] may be subject to a
Correctional Plan. That Directive, however, was never put before the Federal Court
and is not before us.
[4]
In light of the submissions made by the
appellant to the Federal Court as to the scope of his judicial review
application, there is no basis to interfere with the Federal Court’s finding that
the appellant’s judicial review application sought to challenge the April 2,
2014 decision of his parole officer and the officer’s supervisor to update the appellant’s
Correctional Plan. That decision was communicated to the appellant on April 11,
2014. He filed his application for judicial review on June 26, 2014.
[5]
The Federal Court dismissed the appellant’s
application for judicial review because it was filed outside the 30 day time
limit contained in subsection 18.1(2) of the Federal Courts Act,
R.S.C. 1985, c. F-7 [the FCA] and because the appellant failed to avail himself
of the grievance procedure under sections 90 and 91 of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 [the CCRA]. The Federal Court
went on to address the substance of the appellant’s application and determined
that it was without merit because the CCRA allows for a Correctional Plan being
applicable to an individual, like the appellant, who has served his sentence
and is subject to a LTSO.
[6]
I believe that this appeal must be dismissed as
the Federal Court did not err in finding that the appellant’s judicial review
application was untimely or in declining to hear it because the appellant
failed to exhaust the grievance procedure under the CCRA.
[7]
On the timeliness issue, the mandatory 30 day
time limit provided in subsection 18.1(2) of the FCA runs from the date
an applicant has knowledge of the decision he or she wishes to review. In the
appellant’s case, that date was April 11, 2014. The applicable time limit was
not extended by the fact that the appellant wrote subsequent letters of
complaint to CSC or by the fact that CSC responded to them. Thus, the
appellant’s application for judicial review was filed late. As he did not seek
an extension of the time limits, the Federal Court committed no error in
dismissing the appellant’s application for being untimely.
[8]
Nor did the Federal Court err in declining to
hear the application by reason of the appellant’s failure to exhaust the
grievance procedure under the CCRA. Judicial review is a discretionary remedy,
and the case law recognizes that the Federal Court may appropriately decline to
hear a judicial review application when an applicant has not filed a grievance
under the CCRA: see, for example, Froom v. Canada (Minster of Justice),
2004 FCA 352, [2005] 2 F.C.R. 195, at paragraph 12. Contrary to what the
appellant asserts, the grievance procedure under the CCRA was available to him
as an individual subject to a LTSO, and, indeed, his parole officer confirmed
this to the appellant and even forwarded him the form necessary to file a
grievance.
[9]
Also contrary to what the appellant argues, it
was not inappropriate to require him to file a grievance in this case as the
decision in question was not made by the CSC Commissioner but, rather, by the
appellant’s parole officers. The appellant’s situation is therefore
distinguishable from that in Doran v. Canada (Correctional Services),
[1996] F.C.J. No 304 (F.C.).
[10]
The Federal Court therefore did not err in
dismissing the appellant’s judicial review application and I would accordingly
dismiss this appeal with costs.
"Mary J.L. Gleason"
“I agree
J.D. Denis Pelletier J.A."
“I agree
Yves de Montigny J.A."
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